Burns v. Johnson, No. 15-1982 (1st Cir. July 11, 2016)

By Paul Mollica

One pernicious “stereotype is the idea that men are better suited than women for positions of importance or leadership in the workplace.” Here, the First Circuit reverses summary judgment in a federal-sector Title VII case, citing (among other things) a male supervisor’s allegedly hostile tone and emphasis on the word “she” when he acted to block the only woman in the office from performing her job. Oh, and There’s a baseball bat in the case, too.

Burns v. Johnson, No. 15-1982 (1st Cir. July 11, 2016): Ms. Burns’ main role in her job with the Transportation Security Administration (TSA) was scheduling international flights for the Federal Air Marshals (FAMs) in Boston. “Burns was the only female employee in the Operations unit and one of only five non-law enforcement employees in the office.” The scheduling system used in the office was in part Burns’s creation, and the agency credited her with excellent reviews.

Problems began in early May 2012, when a new supervisor named Johnson “assumed the role of Supervisory Air Marshal in Charge (‘SAC’) at the Boston Field Office.” (The Johnson who was Burns’s supervisor – by the way – is not the same as the Johnson named as defendant in this case; the nominal defendant is Jeh Johnson, the head of the federal agency that Burns sued.)

“While in that role, Johnson sometimes carried a Louisville Slugger baseball bat. According to Burns, every time she saw Johnson in the office, he was carrying the bat. Johnson sometimes held an unlit cigar in his mouth.”

When first Johnson arrived, he approached Burns “and asked ‘Who are you?’ and ‘What do you do for me?’ After Burns answered, Johnson turned around and walked out of the office.” Weeks later, Johnson approached Burns at work once again and commented, “so you do still work here.” He was reportedly carrying his baseball bat.

Sometime around May 31, 2012, Johnson reassigned Burns’s scheduling duties – seventy-five percent of her job – to a group of male supervisory employees (the SFAMs). “[D]uring a meeting about who should be responsible for flight scheduling,” Johnson allegedly questioned why Burns should be in charge “and referred to Burns not by name but by the pronoun ‘she,’ emphasizing the pronoun, and using a condescending tone.”

On June 13, 2012, during a weekly meeting, Johnson discussed the new scheduling system, without Burns present:

“SFAM Ouellette defended the system Burns had in part developed, and – 8 – Johnson referred to it as “stupid.” At some point Johnson “put his hand up to Ouellette’s face as if motioning [him] to stop and stated ‘I’ve done it. I get it.’ Johnson then got up and left the room. He returned approximately one minute later and was carrying the baseball bat.” He then “turned to face SFAM Ouellette and began to tap the baseball bat between his legs while staring down at SFAM Ouellette.” When someone at the meeting asked, “What’s the bat for?” Johnson replied, “Things were getting a bit heated in here.”

Further, Burns claims that Johnson otherwise created a hostile work environment. Johnson allegedly “spoke to and interacted with Burns in a way that Burns asserts was hostile and unlike his treatment of male employees. This included Johnson holding a baseball bat in what Burns described as ‘a swinging position’ in almost every interaction with her.”

“After the changes had been announced, in early June, Johnson approached Burns when she was alone in the Operations office. While holding the bat in a swinging position and often tapping it in his hand, Johnson told Burns ‘how much better things were going to be,’ including that he would get new carpet for the office. When Burns began to voice a concern about the flight scheduling change, Johnson left the room.”

Burns retired, and filed a charge with the agency alleging discriminatory demotion and harassment. Thereafter, a TSA investigation substantiated Burns’s complaint, and Johnson was demoted and transferred in 2013.

The First Circuit reverses summary judgment on Burns’s claims. The district court erred in several ways in evaluating Burns’s summary-judgment record.

1. “[I]t was error for the district court to expect that under the mixed-motives theory Burns had to present direct evidence of discrimination,” citing Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). And although the plaintiff pursued her demotion claim under both the mixed-motive and McDonnell Douglas pretext methods, the court concludes regardless of the method deployed, There was “a convincing mosaic of circumstantial evidence” indicating that discrimination occurred.

2. Reassignment of scheduling duties constitutes an “adverse employment action” where the change reduced Burns to “clerical duties.” Holds the panel, “[t]he reduction transferred seventy-five percent of her responsibilities to others and replaced a system she had in part designed.”

That the work changes were not fully implemented at the time Burns retired does not change the adverse nature of the actions. Moreover, the agency “offered no evidence about what duties it intended to offer Burns had she stayed …. The record suggests that things would get worse, not better, especially given that There was no plan for what Burns would do in the long term and Johnson continued to exhibit arguably hostile behavior toward Burns.”

3. The district court also erred in concluding that Burns did create a dispute about the sex-discriminatory motives for Johnson’s actions. The panel cites, in support, Johnson’s antagonistic use of the pronoun “she” during the meeting:

“[A] reasonable jury could infer from Johnson’s emphasis and condescending tone that he was not motivated by either of his stated reasons, a desire to achieve conformity with the other field offices or to give the SFAMs leadership, but because he disliked that a woman was responsible for the task.”

Moreover, “[t]he idea that discrimination consists only of blatantly sexist acts and remarks was long ago rejected by the Supreme Court,” in the landmark 1989 case, Price Waterhouse v. Hopkins. The court cites to the sexist stereotype that women cannot perform well in positions of leadership:

“A reasonable jury could find that a sex-based stereotype was behind Johnson’s questioning of why ‘she’ was in that role as well as his belief that ‘leadership’ should instead be given to the group of male SFAMs, and that these biased beliefs precipitated the decision to give Burns’s duties to a group of men.”

These comments were bolstered by evidence that Johnson regularly disparaged Johnsons’ performance without factual support, and “that Johnson knew that Burns was the employee primarily in charge of international flight scheduling, and yet There is no evidence that Johnson solicited input or feedback from Burns about his proposed changes to the system.”

The inference of gender bias “is also supported by evidence that Johnson used a baseball bat around Burns in an intimidating manner …. There is evidence that Johnson used the bat with Burns in every interaction after he officially took over, but not constantly with men, and that Johnson used the bat in a manner with Burns that was different from how he used it with men.”

4. On the harassment claim, “Johnson’s comments, conduct, and tone about and toward Burns” were sufficient to support a hostile work environment claim.  The panel again focuses on the unequal way in which Johnson wielded the bat around Burns – supposedly every time – but not so much around men. The district court erred by requiring proof of both severe and pervasive harassment.

5. The panel also refuses to affirm summary judgment on the alternative ground that the agency had an affirmative defense, as a matter of law, that Burns did not present her harassment complaint through channels (Faragher/Ellerth). Holds the panel, 

“[T]here is evidence in the record that Burns feared retaliation, which is bolstered by the fact that others expressed fear of retaliation for mere participation in the TSA investigation into Johnson. There is also evidence that Burns had earlier reported her concerns, including to her direct supervisor.”